A federal judge ruled on January 14 that Oklahoma's ban on same-sex marriages is unconstitutional.

In a 68-page opinion, U.S. District Judge Terence Kern found that the state's ban on marriage by Gay and Lesbian couples is 'an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit,' and therefore violates the equal protection clause of the Fourteenth Amendment.

Unlike the similar judgment in Utah, however, Oklahoma's attorneys asked for and got a stay of the ruling pending appeal to the Tenth Circuit Court, the same jurisdiction that will hear Utah's appeal.

The state constitutional amendment banning same-sex marriage, passed in 2004, is based on 'moral disapproval' and does not advance the state's asserted interests in promoting heterosexual marriage or the welfare of children, Kern concluded.

'Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country,' the judge noted.

The suit, Bishop v. Oklahoma, was filed by two Lesbian couples soon after their state banned same-sex marriage in 2004 and has been held up in the federal court system ever since.

One couple, Mary Bishop and Sharon Baldwin wanted to be married in Oklahoma, but their application for a marriage license was rejected by the Tulsa County Clerk. The other couple, Gay Phillips and Susan Barton, wanted their Vermont civil union to be recognized by their state of residence.

The case was complicated by legal wrangling over who was properly named as a defendant, and Kern did not actually hear arguments on the plaintiffs' motion for summary judgment until last summer.

In his opinion, Kern noted a 'rhetorical shift' in legal opinion since the suit was first filed nine years ago.

'There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one,' he wrote.
In Romer v. Evans, the U.S. Supreme Court ruled that a state - in this case Colorado - could not take away legal rights from LGBT citizens. In USA v. Windsor, of course, the court ruled that limiting marriage to opposite-sex couples violated the Fifth Amendment due process and equal protection rights of Gay and Lesbian couples. Both rulings were written by Justice Anthony Kennedy.

LGBT rights advocates hailed the judge's decision.

James Esseks, who directs the ACLU Lesbian Gay Bisexual Transgender ... AIDS Project, said in an interview that the decision is 'a reflection of how far we've moved on this issue.'

'This is not an issue for the coasts, this is not an issue just for the liberals,' he said. 'This is increasingly America's understanding of what marriage is, and fairness in marriage laws looks like.'

Freedom To Marry said Kern had 'done the right thing by affirming that marriage is a fundamental freedom for all people, gay and non-gay - for all of us who believe in liberty and fairness...

'The momentum for the freedom to marry will continue as we win more hearts and minds, working to bring the freedom to marry throughout the country.'

'Judge Kern has come to the conclusion that so many have before him - that the fundamental equality of lesbian and gay couples is guaranteed by the United States Constitution,' HRC President Chad Griffin said in a statement.

'With last year's historic victories at the Supreme Court guiding the way, it is clear that we are on a path to full and equal citizenship for all lesbian, gay, bisexual and transgender Americans. Equality is not just for the coasts anymore, and today's news from Oklahoma shows that time has come for fairness and dignity to reach every American in all 50 states.'

On the other side, NOM President Brian S. Brown said in a statement the Oklahoma decision 'is the latest in a string of examples of the dangers posed to state marriage laws when the avenue of debate is the federal court system.'
Judge Kern was appointed to the federal bench by Bill Clinton in 1994.

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